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In much of America, death row is becoming a crowded place. What was once considered such cruel and unusual punishment that the U.S. Supreme Court temporarily banned it has become ordinary, even antiseptic. But justice is not always sure and clean, says Stephen B. Bright, a Kentucky native and lawyer who directs the Southern Center for Human Rights in Atlanta. Scores of people sentenced to die have won new trials and, in some cases, their freedom because they were poorly represented or facts were ignored or withheld. A high percentage of people facing execution are African- Americans; few are women. How fairly is the death penalty applied? Not fairly enough, argues Bright, who was a guest earlier this year on State of Affairs, a weekly public radio and television program sponsored by U of L, the Kentucky Center for Public Issues, and Public Radio Partnership. Bright was interviewed by George Graves, program host and executive director of KCPI. Bright was at U of L to receive the 1998 Brandeis Medal for his contributions to public-interest law. The following interview is an edited transcript from the show.
Graves: Is it fundamentally wrong for the state to put people to death, however confident we may be that they committed heinous crimes?
Bright: The industrialized world is increasingly coming to that view. Who would have thought 20 years ago if you had asked which of these countries-Russia, the U.S., and South Africa-would still have the death penalty today, that the only one would be the U.S.? Today, given the fact that we have maximum-security prisons and life without parole, things that weren't available in a frontier society, the death penalty is hardly necessary. It is wrong when people kill people out on the streets, and it's equally wrong when the state puts people to death.
Graves: How did the death penalty become a preoccupation for you?
Bright: In 1979, somebody called from Georgia and asked if I would take a death-penalty (appeal) case. When I looked at it, I was horrified that anybody could be sentenced after the kind of perfunctory trial this person had. The lawyer had basically just shown up and watched the trial. I was even more shocked when I met my client and found out that he was a paranoid schizophrenic. None of that evidence was presented. I took another case where the racial discrimination was so apparent, even from reading a cold transcript of the case, that it was appalling. In 1982, I went to Atlanta to become the director of the center and I've been doing this for the last 16 years. I think if Americans realized how the death penalty works in practice, they would have very different views about it.
Graves: Why is it that some parts of the country have a fairly rapid succession of executions?
Bright: A lot of it is historical and cultural. It is a direct descendant of lynching and racial violence in this country. One of the shortest trials was here in Kentucky. It lasted less than one hour. They took the fellow out and hanged him right after the trial. There are legal lynchings going on in this country today. There are trials at which people are represented by lawyers who are not capable of defending them, at which African- Americans are excluded from participation on juries, and in which the outcome is a foregone conclusion.
Graves: Let's talk about racial considerations and the death penalty.
Bright: It's remarkable in a country that is only 12 percent African-American that African-Americans account for about 49 percent of the victims of murders. Yet, 80 percent of the people (on death row) are there for murders of white people. The death penalty is used almost exclusively in cases in which the victim is white. One reason is that prosecutors make the decision to seek the death penalty. In many places, even with substantial black populations, everybody in the prosecutor's office is white. When somebody from their community or social group, or one of their children, is killed, that's much more likely to be a death (penalty) case than if it's somebody in the black community that they've never heard of or they didn't know. That's where race plays the greatest role.
Graves: What do you say to people who look at those statistics and say it is not a matter of conscious racism?
Bright: The biggest problem is just what you hit on: unconscious racism. Racism is much more subtle today, but it still is very much there. The Atlanta Constitution did a study recently that showed that if you are white, you are much more likely to be placed on probation than if you are black, even though the white person may have a worse record. One of the reasons for that is the exclusion of African-Americans from participation at all levels as prosecutors, as judges, and as jurors. Unfortunately, all of the people making the decisions are white. That doesn't mean that these are evil people or that they aren't making decisions in good faith, they simply have not had the life experiences. They have never been victims of racism, (and) they don't understand how powerful it is in this country.
Graves: We often hear complaints that imposing the death penalty takes too long and is too expensive.
Bright: One of the things we found in this long process is that we have a lot of innocent people sentenced to death. In the 22 years since the Supreme Court upheld the death penalty, we've had 70 people released from death rows whom we know are innocent because of (new) evidence that has come forward. What's troubling to me is in how many of those cases the innocence was discovered not by the legal system, but by journalists.
Graves: How is it that journalists were able to find this evidence and lawyers were not?
Bright: When you are paying $20 an hour, you don't get very good lawyers. An awful lot of states are paying too little money to [court-appointed] lawyers.
Graves: Women murder people and very few women are given the death penalty.
Bright: There are only 50 women on death row in the country today; only two have been executed. There does seem to be a certain squeamishness to seek the death penalty in cases involving women.
Graves: Is there anything about that squeamishness that might make us more squeamish about executions in general?
Bright: In Carla Faye Tucker's case, people got to know the person who was going to be executed. From time to time, someone's execution comes to public attention and we realize that these people are much more than the worst thing they ever did in their lives. If we pay attention, we're going to find some hesitation about not only the women sentenced to death, but a lot of the men as well.
Graves: We have gotten away from cutting off hands and fingers, yet we still have this ultimate form of punishment. Why?
Bright: The death penalty is largely symbolic. In this country we have a lot of homicides, over 20,000 a year, (but) we only sentence an average of 275 people to death. We are basically picking 275 people to kill to show that we're tough on crime.
Graves: Why can't we fix the flaws in the justice system?
Bright: I think the reason that the bar doesn't (discipline lawyers more severely) is that our whole indigent-defense system counts on those lawyers because the (large, prestigious firms) do not want to work for $20 an hour. So the question is who's going to pay for it. In our society, it is constitutionally required that people be represented. Unfortunately, the legislatures have not been willing to provide the money necessary for representation.
"Front & Center," a collaborative effort between U of L Magazine and the Kentucky Center for Public Issues, focuses attention on issues of concern throughout the Commonwealth. KCPI is an independent, nonpartisan, nonprofit public-policy organization. The views presented here do not necessarily represent those of the university or KCPI.
